Alabama Advisory Opinions June 30, 2008: AGO 2008-102 (June 30, 2008)

AGO 2008-102.

Dear Mr. Graham:

This opinion of the Attorney General is issued in response to your request.

Should newly elected municipal officers take office on the first Monday in October, as provided in Phenix City's Charter, or should they take office the first Monday in November, as provided in the Code of Alabama?

Your opinion request deals with three enactments. First, Act 71 (1977) ("Act 77"), a general bill of local application ("GBLA"), sets forth the council-manager form of government adopted by the City of Phenix City and embodied in the Phenix City's Charter. 1977 Ala. Acts No. 71, 78, amended by 2000 Ala. Acts No. 2000-641, 1287. Second, Act 2006-354 amended several of the laws governing municipal elections under Chapter 46 of Title 11 (Chapter 46), including section 11-46-21, the law governing the time elected officials take office. 2006 Ala. Acts No. 2006-354, 937. In a third act, Act 2006-281, the Legislature amended several of the general election laws, which are codified in title 17, to pro-vide, in part, for provisional ballots. 2006 Ala. Acts No. 2006-281, 496.

The City of Phenix City is subject to both the municipal election laws enumerated in Chapter 46 and the general election laws enumerated in title 17, except where Act 77 specifically provides otherwise. Section 1.07 of Act 77 governs the election of a council and states that, "[t]he councilmen so elected shall take office on the first Monday in October following the election." 1977 Ala. Acts No. 71, 81. Although this sec-tion requires that officers take office the first Monday in October, section 1.06 of Act 77 also governs elections, and it provides that the election be conducted, the votes canvassed and the results declared, " in the same manner as provided by law in respect to other city elections. " Id . at 80. This section requires that the election be held in accordance with the laws governing municipal elections, which are those found in Chapter 46. Since, however, the implementation of Acts 2006-281 and 2006-354, sec-tions 1.06 and 1.07 of Act 77 are no longer reconcilable.

A city conducting its municipal election pursuant to Chapter 46 must use provisional ballots, as mandated by Act 2006-281. 2006 Ala. Acts No. 2006-281, 496. Consequently, provisional ballots are not can-vassed until seven days following the regular election, at which time a runoff election may be necessary. Ala. Code § 17-10-2(f) (2006). If a runoff election is scheduled, absentee ballots must be assembled, mailed, and returned by the electors, a process requiring several weeks.

Regular elections for the City of Phenix City are held the fourth Tuesday in August, as provided by a local ordinance enacted pursuant to section 11-46-5 of the Code, and runoff elections are held three weeks following the regular election, as stated in Act 2000-641. At the time of enactment, these laws mirrored the laws provided in Chapter 46. Chapter 46, however, was recently amended by Act 2006-354 to provide munici-palities using the provisional ballots additional time to complete the absentee ballot process by postponing the time runoff elections are held from three weeks after the regular election to six weeks following the regular election. 2006 Ala. Acts. No. 2006-354, 937. As a result, the time newly elected officials take office was postponed from the first Monday in October to the first Monday in November. Id.

Because regular elections for the City of Phenix City are held the fourth Tuesday in August, permitting elected officials to assume the duties of their office on the first Monday in October would not allow enough time after the regular election to hold runoff elections and would require officials to take office before the election results are canvassed. Thus, newly elected officials cannot take office the first Monday in Octo-ber, as stated in section 1.07, if the election is conducted in the manner provided in section 1.06. Your request contemplates whether Phenix City's Charter governs the time newly elected officials take office or whether section 11-46-21 of the Code of Alabama governs.

The fundamental rule of statutory construction is to ascertain and give effect to the intent of the Legislature in enacting the statute. Ex Parte Ala. Dep't of Mental Health & Mental Retardation , 840 So. 2d 863, 867 (Ala. 2002); Gholston v. State , 620 So. 2d 719, 721 (Ala. 1993). The legislative intent may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained. Bama Budweiser of Montgomery, Inc. v. Anheuser-Busch, Inc. , 611 So. 2d 238, 248 (Ala. 1992).

In this case, the Legislature passed Act 2006-281 to provide for pro-visional ballots in municipal elections and amended Chapter 46 to pro-vide the additional time necessary for the use of provisional ballots. The Legislature intended the City of Phenix City, through section 1.06, to conduct the election and canvass the results in accordance with the pro-visions of Chapter 46. To comply with section 1.06, the City of Phenix City must use provisional ballots. Thus, it is the opinion of this Office that the Legislature intended the City of Phenix City to allow newly elected officials to take office the first Monday in November in accor-dance with section 11-46-21.

Because this opinion causes the City of Phenix City to make a change in a voting practice or pro-cedure, the change should be submitted to the United States Department of Justice for preclearance under section 5 of the Voting Rights Act of 1965 before the change is implemented.

Newly elected officials in Phenix City should take office the first Monday in November as required in section 11-46-21.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Noel S. Barnes of my staff.

Sincerely,

TROY KING

Attorney General

By:

BRENDA F. SMITH

Chief, Opinions Division

TK/NB/as

656816/120120